tremendous ramifications for the practice of law came to our notice
In Bar Council of India v. Bonnie Foi Law College, Justice Dalveer
Bhandari and Justice H. L. Dattu mandated the Center to conduct bar
examinations to test candidates for their suitability or otherwise for
entry into the legal profession.
You heard right: current law students who expect to graduate this year
may not be able to don the robes of an advocate without first clearing
a bar exam.
The Supreme Court order dated on 14 December 2009, came in the light of
recommendations by a special committee constituted by the court and
headed by the Solicitor General, Gopal Subramanium. This committee was
primarily tasked with making recommendations concerning the manner of
affiliation and recognition of law colleges by the Bar Council of India.
Upon receipt of the Committee report, the Supreme Court mandated the
Centre to implement the recommendations, explicitly referring to the
introduction of a Bar Examination:
“The most significant achievement of this entire exercise has been the
introduction of the Bar Examination. Learned Solicitor General submits
that the first Bar Examination shall be conducted in July-August, 2010
by a specially constituted independent body, consisting of experts of
various disciplines of national stature. In the facts and circumstances
of this case, we deem it appropriate to direct the Central Government
to ensure that the entire programme framed by the three-member
Committee is operationalized forthwith. We further direct the concerned
institutions to fully cooperate with the Bar Council of India.”
India is not new to bar exams. The Indian Advocates Act, 1961 required
holders of law degrees who wished to enter practice to complete a
course in practical training and also pass an examination. But, in
1973, this provision was deleted by way of amendment, and since then, a
law graduate from a BCI-recognized university could directly enroll as
a lawyer. The BCI attempted to introduce an apprenticeship or practical
training course in 1998, whereby recently graduated law students would
have to work for a year with a counsel before they could enrol as
advocates. However, the Supreme Court struck it down on grounds of lack
of competence (see V. Sudeer v. Bar Council of India, AIR 1999 SC 1167).
The Court held that under the prevailing statutory framework, the BCI
did not have the authority to prescribe conditions for training and
examinations after graduation; it would first have to amend the
Advocates Act to confer such powers unto itself. Notwithstanding this,
the court still went on to explicitly endorse the need for an
apprenticeship and a Bar examination, albeit after appropriate
statutory amendments in this regard.
In the light of the V Sudeer case, one is forced to contend with the
legality of the current Supreme Court mandate in favour of bar exams.
Needless to state, the Supremes are well within their right to reverse
Sudeer or distinguish it, but neither of it happened in the present
(Bonnie vs OUI) case. In fact, the Supreme Court was not even deciding
the issue of whether or not bar council exams could be introduced by
the Bar Council without an enabling amendment to the Advocates Act.
The other tricky part of this ruling is that it could be construed as a
judicial mandate for legislative amendment. In effect, the Supreme
Court has directed the Center to implement the Committee report and
permit the holding of a bar exam by a certain date. But if such bar
exam can only be legally instituted after legislative amendment, one
might argue that the court has effectively directed the center to move
such legislative amendment. Is this constitutionally sustainable? If
such amendment is indeed part of the mandate, can the government
formulate such a bill and present it before the end of this budget
session to comply with the July-August 2010 date?
In fact, the report by the SG committee clearly recognizes the need for
legislative amendment in this regard:
“A Bar Examination should be introduced for the purpose of admitting
law graduates to the Bar: As discussed supra, the introduction of a bar
examination would ensure maintenance of standards in the legal
profession, as well as standardization and constant innovation in the
standards of curriculum, teaching methodology etc. The Committee is,
therefore, of the opinion that qualifying a bar examination should be
made a requirement prior to admission to the Bar by all State Bar
Councils across the country. In light of the decision of the Supreme
Court in the V. Sudeer case, such a requirement may be introduced in
the Advocates Act, 1961 by means of a statutory amendment."
Given that the Supreme Court was only directing an implementation of
the Committee Report, one might argue that their order be construed as
a mandate to the Centre to also begin the process of amending the
Advocates Act. If this is so, can the Center comply with the courts
time-frame to permit the Bar Council and other relevant authorities to
hold such examinations by July-August 2010? The Center is already
reeling under the pressure of multiple bills, some of which it now
fears will not sail through as it initially expected (the one on
nuclear liability limitation posing the greatest set of problems for
it). Given that it is thinking of stalling some of these bills, will it
take on another one at this stage and within this short time frame?
Anyway back to the report of the Committee. Prior to framing his
report, the Solicitor General had solicited comments from a few of us
involved in legal education. Pursuant to his request, we sent him a
rather lengthy note, strongly recommending a bar exam as a potential
“quality” control measure. For this interested, we’ve put up this note
on SSRN (we are in the process of revising this note for the purpose of
publication in a law journal).
In this piece, we specifically note:
"This note (prepared in response to a request from a Supreme Court
Committee) begins by analysing the constitutional and regulatory
framework pertaining to legal education in India with special emphasis
on the two principal authorities in this sphere: The BCI and the UGC.
It then goes on to describe ambiguities and criticism regarding the
ambit of the BCI’s powers, and accreditation mechanisms in higher
education in a few other countries.
It then goes on to recommend reforms, most of which can be effectuated
within the corners of the existing regulatory framework, without the
need for statutory reform. Others may require statutory amendments.
The principal recommendations made in this note are as follows:
i) Indian legal education ought to encompass much more than merely
training students for the bar. Indeed, the aim ought to be to create an
effective social engineer who is socially sensitive and uses the law in
myriad ways to help better society.
ii) The Bar Council of India (BCI) has no legal/constitutional
authority to regulate the full spectrum of legal education, independent
of the Universities. In fact, Section 7(1)(h) of the Advocates Act
clearly mentions that the BCI is to lay down standards of legal
education in consultation with the Universities in India imparting such
education and the State Bar Councils.
iii) An all-India Bar Entrance Examination should be introduced as a
quality-control mechanism, instead of the existing accreditation system
which is patently flawed, ineffective, costly and subject to abuse. It
will not only ensure a qualitative check on the number of lawyers
entering the Bar, but would also give the Bar Council scope to regulate
legal education in a more robust manner.
iv) As a more substantive policy measure, we recommend a more thorough
overhaul of the present regulatory structure pertaining to legal
education in India. The BCI powers should only extend to regulating
that aspect of legal education that is intrinsically connected with the
practice of law at the Bar. Some of the regulatory functions that are
presently being performed by the BCI, and which do not relate directly
to practice at the Bar should be devolved to another authority. This
authority should ideally be a standing committee on legal education
under the IRAHE as proposed by the NKC."
Interestingly, the Supreme order also endorses the Committee’s
recommendation for a Directorate of Legal Education under the BCI – a
body meant to specifically regulate legal education within the bounds
of the BCI powers. This was recently made operational, under the
leadership of Prof. VB Coutinho. Rahul Singh, who taught at NLS
Bangalore till recently, has been appointed as the Deputy Director. Our
very best wishes as this body tries to navigate the rather challenging
terrain of legal education.
By: Shamnad Basheer and Sroyon Mukherjee